Buckhout v. State

Full title: MICHAEL DAVID BUCKHOUT, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Mar 30, 2004

No. 14-03-00501-CR (Tex. App. Mar. 30, 2004)

Opinion

No. 14-03-00501-CR.

Memorandum Opinion filed March 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.3(b).

On Appeal from the County Court, Grimes County, Texas, Trial Court Cause No. 16,808. Affirmed.

Panel consists of Justices EDELMAN, FROST, and GUZMAN.

MEMORANDUM OPINION

EVA M. GUZMAN, Justice.

Appellant, Michael Buckhout appeals a misdemeanor conviction for driving while intoxicated ("DWI"). In his first issue, appellant contends the trial court erred in denying his challenges for cause against jurors who could not consider probation¹ as a possible punishment. Appellant also asserts that because his challenges were denied, his right to due process, effective assistance of counsel, and an impartial jury were denied. We affirm.

1 The term "probation" has been replaced with "community supervision" in the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 42.12. However, because appellant and the State refer to probation throughout the record, for consistency purposes, we do so as well.

I. FACTUAL BACKGROUND

Our factual summation is limited to those facts surrounding voir dire, as they form the basis for this appeal. During voir dire, the State informed the venire members² of the range of punishment for DWI. The State then asked if the venire members would be able to consider probation as a punishment and five of the potential jurors responded that they would not. Appellant's counsel continued this line of questioning during voir dire, and three additional jurors stated they could not consider probation as a sentencing option. In chambers, appellant's counsel moved to strike these eight jurors for cause, claiming they were unable to consider the minimum punishment for the offense charged. The judge denied the motion. After appellant's counsel exhausted his peremptory challenges to remove objectionable venire members, he requested additional peremptory challenges to strike others. The court denied the request. During the lunch recess, before the jury returned, counsel again objected to the empaneled jury and identified two other jurors he would have moved to peremptorily strike. Ultimately, three of the individuals who stated they could not consider probation as a punishment option were seated as jurors. The jury convicted appellant and assessed punishment at one year in prison and a fine of $800.

II. DISCUSSION A. Appellant's challenges for cause

In his first issue, appellant contends the trial court erred in denying his challenges for cause to the venire members who stated they could not consider probation for a DWI offense. A defendant is entitled to have a jury panel comprised of individuals willing to consider the full range of punishment applicable to the offense charged. Johnson v. State, 982 S.W.2d 403, 405-06 (Tex.Crim.App. 1998); see TEX. CODE CRIM. PROC. art. 35.16(c)(2). If a venire member is unable to consider the full range of punishment, the court abuses its discretion by denying a challenge for cause as to that member. See Johnson, 982 S.W.2d at 406. In addition, a defendant has a right not to have a particular venire member on the jury if the individual is challengeable for cause. Johnson v. State, 43 S.W.3d 1, 6-7 (Tex.Crim.App. 2001). When a potential juror "has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment thereof," a defendant may assert a challenge for cause.³ TEX. CODE CRIM. PROC. art. 35.16(c)(2) (emphasis added). It follows then, that a potential juror is not challengeable for cause if that juror is unable to consider a range of punishment that is not in fact applicable to the case. If probation is not a possible punishment, the venire member's ability to consider it is not relevant to the jury selection process. See GEORGE E. DIX ROBERT O. DAWSON, 43 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 35.97 (2d ed. 2001). The record in this case does not indicate that probation was an option. Before a defendant is eligible for probation, he must timely file a proper motion seeking probation. Id.; TEX. CODE CRIM. PROC. art. 42.12, § 4(e). Article 42.12, section 4 of the Code of Criminal Procedure provides:

A defendant is eligible for community supervision [i.e., probation] under this section only if before the trial begins the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state, and the jury enters in the verdict a finding that the information in the defendant's motion is true.

TEX. CODE CRIM. PROC. art. 42.12, § 4(e) (emphasis added). The record does not contain the necessary application nor evidence that the requisite finding was entered by the jury.⁴ Therefore, the procedural requirements necessary for the jury to consider probation were not met. Moreover, during the State's argument in the punishment phase, the prosecutor stated that probation was not a punishment option in this case⁵ and appellant's counsel did not object to this statement, thus acknowledging that probation was not applicable. Finally, the verdict forms used by the jury did not include probation as a sentencing alternative. Two separate verdict forms were used during the punishment phase, one to be signed if the jury found the previous commission of a DWI to be "true" as an enhancement and the second to be signed if the jury found the enhancement to be "not true."⁶ Neither verdict form mentioned probation. Based on the foregoing, we conclude that because probation was not a sentencing option in this case, a venire member unable to consider that punishment could not be challengeable for cause, and the trial court did not abuse its discretion in denying appellant's challenges for cause.

B. Due Process, Ineffective Assistance and Impartial Jury Trial Challenge

As a result of appellant's challenges for cause being denied, he perfunctorily asserts in his brief that his right to due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and article 1, section 19 of the Texas Constitution were denied, and he was denied his rights to effective assistance of counsel and an impartial jury, as guaranteed by the Sixth Amendment to the United States Constitution and article 1, section 10 of the Texas Constitution. However, appellant failed to present any argument or provide any authority in support of his statement. Because appellant did not adequately brief these issues, his contentions are waived. See Tex.R.App.P. 38.1(h); see also Murphy v. State, 112 S.W.3d 592, 596 (Tex.Crim.App. 2003) (holding that analysis based upon appellant's rights under the Sixth Amendment can not be further argued under article 1, section 10 of the Texas Constitution without an explanation as to how the two provisions provide different protections); Heitman v. State, 815 S.W.2d 681, 690-91 n. 23 (Tex.Crim.App. 1991) (stating that briefs asserting rights under Texas Constitution inadequate if they do not provide argument and authority in support). Accordingly, we overrule appellant's issues and affirm the trial court's judgment.